The Canadian Association of Broadcasters has applied to the Copyright Board of Canada for a radical overhaul of the current fees paid by radio stations for commercial radio reproduction of music. The CAB argues that in light of copyright reforms in Bill C-11 and the Supreme Court of Canada’s rulings on fair dealing, there is no legal basis for several tariffs proposed by CMRRA-SODRAC (CSI), AVLA, and ACTRA and that the rate on earlier approved tariffs should be significantly reduced.
The CAB position on the impact of the law is that:
The result of the changes to the Copyright Act made by the Copyright Modernization Act, when combined with the fair dealing right as applied in ESA, is to eliminate or significantly reduce the liability of radio broadcasters for the reproductions made by them in the course of their broadcasting activities. Even the reproduction collectives agree that the legislative changes alone will eliminate most liability of radio broadcasters for reproductions of music.
Interestingly, the CAB relies on CSI’s comments during the Bill C-11 hearing to support its position on the effect of the legislative reform. At the time, CSI warned:
[t]he provisions of Bill C-32 would reduce the remuneration of authors and publishers of musical works in the following ways: the Bill as drafted would eliminate the revenues authors and publishers now receive from broadcasters when reproductions of musical works are made and used for broadcasting purposes; [and] new subsections 30.71 (Temporary Reproductions for Technological Processes), 29.24 (Backup Copies) and 29.23 (Fixing Signals and Recording Programs for Later Listening or Viewing) would further reduce the requirement to make payments when musical works are reproduced…”
In addition to Bill C-11, the CAB argues that radio station copies made for music evaluation purposes properly qualify as fair dealing (much like song previews do for consumers). Given the legislative changes and caselaw, the CAB maintains that the cumulative effect is a “material change in circumstances” that warrant a change in the applicable tariffs. The Copyright Board has yet to announce how it will handle the issue, but the CAB application points to yet another dramatic shift in the Canadian copyright landscape in the aftermath of copyright reform and the Supreme Court of Canada decisions.